74 Am. U. L. Rev. 1819 (2025).

Abstract

Few goods have played as potent a role in shaping constitutional doctrine as alcohol. By repealing national Prohibition and granting states sweeping authority to regulate intoxicating liquors within their borders, the Twenty-first Amendment carved out a singular exception in American constitutional law—one that has long stood in tension with the Dormant Commerce Clause (“DCC”), which prohibits states from discriminating against interstate commerce.

This Note surveys the constitutional landscape created by the Twenty-first Amendment, beginning with a historical overview of DCC jurisprudence, the Prohibition era, and the legislative history of the Twenty-first Amendment. The analysis then focuses on the uneasy constitutional cocktail between Section 2 of the Twenty-first Amendment, which grants the states significant regulatory authority over alcohol, and the principles of the DCC, which broadly prevent states from enacting legislation that discriminates against interstate commerce. This tension most recently culminated in Tennessee Wine & Spirits Retailers Ass’n v. Thomas, where the uneasy balance between plenary state powers over alcohol and enforcing DCC principles gave way to a manifest exorcism of the former and an incipient threat to the latter.

To protect the nondiscrimination principle at large, this Note argues that Section 2 constitutionalized an exception to the DCC to preserve the intended regulatory autonomy over alcohol granted to states and now provides a novel argument to ensure the consistency of longstanding DCC doctrine: there cannot be a constitutional exception to a nonexistent doctrine, and Section 2 serves as retroactive proof that the DCC deserves to remain on tap, offering the Court a well-earned tonic to prevent the nondiscrimination principle from drying out.

* Senior Forum Editor, American University Law Review, Volume 74; J.D., 2025, American University Washington College of Law; B.A., Economics & Political Science, 2016, American University. My sincerest thanks to Hallie Hoffman for her encouragement; to Lauren Zipp and Katie McGee for their tireless edits; and to Michael Lovito, whose patient efforts to make my writing more accessible finally paid off, and whose writing consistently inspires me.

Finally, thank you to my mother, Vicki Scharnhorst, and my grandmother, Isabelle Emerson—both of whom made my law school endeavor possible, and who taught me how to appreciate a good glass of wine. Sláinte!